Avoiding Anti-Discrimination Provisions in Recruiting, Hiring and the Form I-9 Process

State Employment Verification Laws

Your Company’s I-9 Program

IndependentContractors

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Conducting an Internal Audit

I-9 Law Overview

The basic I-9 law is called IRCA (Immigration Reform and Control Act) was enacted in 1986. It has two main requirements of employers:
(1) Hire only persons authorized to work in the United States, and
(2) Do not discriminate on the basis of citizenship status or national origin.
IRCA is the United States' initial employment eligibility verification (EEV) program and it has grown into a complex labyrinth of regulations with multi-faceted and multi-agency government enforcement.

The initial employment eligibility verification (EEV) I-9 law was enacted as a means to shift to employers the burden of controlling unauthorized immigration into the United States. Employers are required to complete a Form I-9 verifying employment eligibility of all employees. The philosophy apparently is "if undocumented immigrants can’t be hired absent work authorization then the economic incentive to illegally enter the U.S. will no longer exist, and illegal immigration will stop".

I-9 compliance and E-verify require employers to verify all workers’ employment eligibility, or work authorization. Undocumented aliens and illegal immigrants generally do not have work authorization. The I-9 laws and employment eligibility verification process restrict employment of illegal or undocumented immigrants or aliens.

I-9 compliance (and E-verify for registered employers) requires that employers verify all workers’ employment eligibility, or work authorization. Persons not authorized for employment, including undocumented foreign nationals (or "illegal immigrants") generally do not have work authorization. The I-9 laws and the employment eligibility verification process restrict employment of illegal or undocumented immigrants and employment of persons who are not "employment authorized".

Employer failure to verify employment eligibility, and to properly complete and retain I-9 Forms subjects the company to stiff criminal and civil liabilities, including imprisonment, asset forfeiture, and treble damages in RICO (Racketeer Influenced and Corrupt Organization) lawsuits by competitors. Executives, officers, managers, supervisors and key employees, as well as accountants, are liable personally for civil and criminal penalties for I-9 related errors and unlawful employment eligibility verification (EEV) practices.

The Form I-9 itself is merely the tip of the iceberg of employer employment eligibility verification responsibilities. The Form I-9 is the main cog in the work authorization laws, but merely completing Form I-9 is only the employer's first step in Form I-9 employment eligibility verification.

Form I-9 must be correctly completed, and without any unlawful employer action related to either documents presented by the employee or the manner in which the employer reviews the documents presented. The Forms I-9 must be re-verified when and as appropriate. The employer must properly retain its I-9s, generally for several years. The employer's I-9s must be available for Immigration and Custom Enforcement (ICE) audits or investigations, and for Department of Labor (DOL) wage and hour audits or investigations. Many states have their own mini-I-9 and mini-E-Verify laws that add another layer of employerI-9 compliance regulations and requirements.

Employer I-9 liabilities and I-9 penalties include civil penalties that can amount to millions to dollars. Employer I-9 and employment eligibility verification process liabilities and penalties include civil penalties, which can mount quickly as they are assessed on each I-9 document or individual, and criminal penalties for both the company and individual key employees. Criminal liability can involve fines, asset forfeiture, loss of profits and individual imprisonment for a number of federal crimes that may be involved in violations of the employment eligibility verification process.

Form I-9 is divided into three (3) sections. Each section of Form I-9 involves specific compliance requirements in properly completing the I-9.

Employees complete Section 1 of Form I-9 when they begin work. The employer certifies its review of the employee's work authorization documents in Section 2 of Form I-9 within 3 business days of the first workday. If the employer hires a person for less than 3 business days, Sections 1 and 2 of Form I-9 must be fully completed when the employee begins work.

“Employment” includes any service or labor performed for any type of remuneration within the United States, with the exception of sporadic domestic service by an individual in a private home. Day laborers or other casual workers engaged in any compensated activity (with the above exception) are employees for purposes of immigration law and Form I-9 compliance.

Employers DO NOT complete a Form I-9 for persons who are:
1. Hired before November 7, 1986, who are continuing in their employment and have a reasonable expectation of employment at all times;
2. Employed for casual domestic work in a private home on a sporadic, irregular, or intermittent basis;
3. Independent contractors; or
4. Providing labor to the employer, but who are employed by a contractor providing contract services (e.g., employee leasing or temporary agencies).
5. Not physically working on U.S. soil.

However, an employer cannot contract for the labor of an alien if it knows the alien is not authorized to work in the United States.

The employer may not ask the employee for specific documents. The employer must review the documents presented by the employee. to verify that the documents establish employment authorization according to Form I-9, appear genuine and relate to the employee. The employer must review identity and work authorization documents presented by the employee from the Form I-9 List of Acceptable Documents.

An employer may incur I-9 liability and penalties for using workers on its premises that are not authorized for employment, even if they are not its direct employees.

It is unlawful for any employer to "knowingly hire or continue to employ" unauthorized workers. Actual knowledge that the worker is not employment authorized is not required to establish employer liability. Employers are liable for "constructive knowledge" that an employee is not authorized for employment. "Constructive knowledge" may be fairly inferred if through the exercise of reasonable care a person should or would have known that the employee was not authorized for employment; or the employer deliberately fails to investigate the facts.

An employer includes an agent or anyone acting directly or indirectly in the interest of the employer, and may include independent contractors and subcontractors. The use of temporary or short-term contracts cannot be used to circumvent the Form I-9 employment authorization verification requirements.

Employers may be liable for:
• Employing unauthorized workers;
• Failing to complete an I-9 for every employee;
• Failing to complete the I-9 Form at the proper time;
• Accepting wrong documentation for I-9 verification;
• Requesting more documents than required;
• Requesting specific documents;
• Discriminating on the basis of citizenship or nationality;
• Failing to reverify Form I-9 if employment authorization should be reverified;
• Failing to properly retain Forms I-9; and
• Many other sometimes complex aspects relating to completing Form I-9 and verifying employment eligibility of all workers.

I-9 employment eligibility verification liabilities may include civil monetary fines and penalties, as well as individual and corporate criminal fines and penalties, including asset forfeiture, lost profits, treble damages and attorney’s fees, debarrment from government programs and imprisonment.

Immigration and Custom Enforcement (ICE) has dramatically increased I-9 audits and other investigative actions against employers. ICE's new enforcement philosophy sends a strong message, if not a chill, to employers:

• "ICE is committed to establishing a meaningful I-9 inspection program to promote compliance with the law...This nationwide effort is a first step in ICE's long term strategy to address and deter illegal employment."
• "Immigration and Customs Enforcement (ICE) agency is about to try a new approach: not just targeting the workers, but also the people who employ them, in the first place. "That's a challenge. There are millions of employers in the United States."
• "We're very cognizant that we just can't focus on the very top, on the biggest employers – that we have to do this at all levels."
• "ICE is committed to establishing a meaningful I-9 inspection program to promote compliance with the law."

• "....individuals who have profited from hiring illegal aliens -- and often exploiting them -- we're going after their houses, their Mercedes and any money that they have, as well."
• "When we find those employers who don't want to do the right thing, we're going to target our criminal efforts and bring all the criminal statutes that we can to bear against them..."
• "We found that the fines were not an effective deterrent, employers treated them as part of the cost of doing business."
• "Just a small fine or a slap on the wrist is not a deterrent...we see more robust criminal cases...the prospect of 10 years in prison carries much sharper teeth than just a small fine."
• "Worksite enforcement actions target a key component of the illicit support structure that enables illegal immigration to flourish. No employer, regardless of industry or location is immune from complying with the nation's laws. ICE and our law enforcement partners will continue to bring all of our authorities to bear in this fight using criminal charges, asset seizures, administrative arrests and deportations."
• "We want to send the message that your cost of business just went up because you risk your livelihood, your corporate reputation and your personal freedom."

No business has any business unless the owners, officers, executives, managers, supervisors and HR personnel are regularly trained in using better employment eligibility verification practices and in completing Form I-9, and regularly performing internal I-9 compliance audits. It is simply negligent to fail to regularly review your I-9 practices and compliance.

Every business from a small shop or restaurant to Wal-Mart should work with an immigration attorney knowledgeable in employment eligibility verification and Form I-9 compliance to review its Forms I-9 and practices, train personnel on completing, retaining and reverifying I-9s, develop written policies for handling I-9s and conducting regular internal compliance audits on their I-9s...before ICE comes knocking on your door.

This is an advertisement. The Goulder Immigration Law Firm is the law office of Gerald Goulder and limits its practice predominantly to US immigration and naturalization law; and we do not claim expertise in the laws of states other than Nort Carolina. The information contained on this site is intended to educate members of the public generally and is not intended to provide solutions to individual problems. Readers are cautioned not to attempt to solve individual problems on the basis of information contained herein and are strongly advised to seek advice from an experienced immigration attorney regarding specific case situations. The information on this website may not be up to date and should not be relied on without the advice and representation of your attorney. The links to government agencies and other websites are provided as a convenience only and no warranty express or implied is made regarding the accuracy of information obtained from those websites.